[Cite as In re S. Children, 2020-Ohio-3354.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: THE S. CHILDREN : APPEAL NOS. C-190287
C-190299
: C-190313
C-190320
: C-190332
C-190333
: TRIAL NO. F16-2167Z
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Reversed and Cause Remanded in C-190287, C-
190299, C-190313 and C-190320; Appeals
Dismissed in C-190332 and C-190333
Date of Judgment Entry on Appeal: June 17, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee, Jr.,
Assistant Prosecuting Attorney, for Appellant/Cross-Appellee Hamilton County
Department of Job and Family Services,
Geoffrey W. Pittman for Appellants/Cross-Appellees C.S.2 and K.S.,
Kacy C. Eaves, for Appellants/Cross-Appellees C.S.1, M.S., and N.S.,
Raymond T. Faller, Hamilton County Public Defender, and Klarysa J. Benge,
Assistant Public Defender, Guardian ad Litem for Appellants/Cross-Appellees minor
children,
Stagnaro, Hannigan, Koop and Chad G. Koop for Cross-Appellant/Appellee Father,
Cathy R. Cook for Cross-Appellant/Appellee Mother.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} These consolidated appeals present an issue of first impression in this
district: whether a trial court may dismiss a child from a dependency, neglect, and
abuse action solely because the child died before the action was filed. Because R.C.
2151.031 specifically provides for the adjudication of a deceased child as an abused
child, we hold that the trial court erred in dismissing a child from the action in the
case below solely because he was deceased, and we reverse and remand for further
proceedings.
Factual and Procedural Background
{¶2} This case has a lengthy procedural history. In October 2016, the child
that is the subject of this appeal, A.S., died from injuries allegedly inflicted at home
while in his parents’ care. An autopsy was conducted, and A.S.’s death was ruled a
homicide. Following A.S.’s death, the Hamilton County Department of Job and
Family Services (“HCJFS”) filed a complaint seeking permanent custody of A.S. and
his five siblings, K.S., C.S.1, M.S., N.S., and C.S.2.1 The complaint alleged that the
children were abused, neglected, and dependent.
{¶3} At the close of the state’s presentation of evidence during the
adjudicatory phase of the proceedings, the parents filed a motion for summary
judgment, which the trial court recast as a motion to dismiss. In an entry dated
November 3, 2017, the trial court ruled on the motion to dismiss and noted that:
“The fourth amended complaint upon which the Court has been proceeding alleges
1 Any reference to the complaint in this opinion refers to the “Fourth Amended Complaint” filed
on March 13, 2017.
2
OHIO FIRST DISTRICT COURT OF APPEALS
that all five remaining children ([A.S.] having been previously dismissed from the
complaint because of his death which occurred even before the first complaint was
filed) are neglected, abused, and dependent * * *.” The trial court proceeded to
consider the motion to dismiss with respect to the five children that it believed were
still subject to the complaint, and it held that “the Court cannot find that the State
has presented sufficient evidence to justify a continued allegation of neglect, abuse,
or even dependency as it relates to [N.S. and C.S.1]. The complaint is dismissed as to
these two children only.”
{¶4} C.S.1 and N.S., their guardian ad litem, and HCJFS appealed the trial
court’s entry dismissing the children from the action. In In re S Children, 1st Dist.
Hamilton Nos. C-170624 and C-170653, 2018-Ohio-2961 (“S Children 1”), this court
considered the appeals filed by C.S.1 and N.S. and their guardian ad litem. We
upheld the trial court’s determination that the state had failed to prove that C.S.1 and
N.S. were neglected children. Id. at ¶ 31. But, with respect to the state’s allegation
that the children were dependent, we held that the trial court erred in holding that
R.C. 2151.04(C) did not apply, and we remanded the case for the trial court to
determine whether the children were dependent under this provision. Id. at ¶ 34-36.
{¶5} As to the appeal filed by HCJFS, we ordered supplemental briefing
concerning whether the trial court’s order was a final, appealable order from which
HCJFS could appeal. In In re S Children, 2018-Ohio-5010, 126 N.E.3d 239, ¶ 17 (1st
Dist.) (“S Children 2”), we determined that the order was final and appealable with
respect to HCJFS because the trial court’s dismissal of the action as to C.S.1 and N.S.
deprived HCJFS, the children’s legal custodian, of its substantial right to seek and
obtain protection for the children. We then relied on S Children 1 to sustain HCJFS’s
3
OHIO FIRST DISTRICT COURT OF APPEALS
argument that the trial court erred in failing to apply R.C. 2151.04(C) when
determining whether C.S.1 and N.S. were dependent children. Id. at ¶ 36. In a
footnote, we stated:
The trial court deemed A.S., the deceased sibling of N.S. and
C.S., dismissed from the complaint due to his death, which was
allegedly a homicide. HCJFS failed to present an assignment of error
challenging the trial court’s dismissal of A.S. due to his death or any
argument challenging the court’s dismissal on that basis. Accordingly,
we do not address on appeal the trial court’s dismissal of A.S. from the
complaint.
Id. at ¶ 1, fn. 1. HCJFS filed a motion for reconsideration, asserting that it had
challenged the dismissal of A.S. in its appellate brief. This court denied the motion
for reconsideration.
{¶6} On remand before the trial court, HCJFS filed a “motion to correct the
record, nunc pro tunc,” arguing that the trial court’s statement in its November 3,
2017 entry that A.S. had previously been dismissed from the action due to his death
was incorrect. Parents argued that the dismissal of A.S. was the law of the case
because HCJFS had failed to challenge the dismissal of A.S. on appeal. Recognizing
that A.S. had not been dismissed from the case and that its prior entry had been
incorrect, the trial court issued an entry dated April 25, 2019, captioned “Entry
correcting the record, nunc pro tunc 11/03/2017.” The entry stated:
The Court, being fully apprised, finds that [A.S.] has not been
dismissed from this underlying action and is still subject to the Fourth
Amended complaint filed March 13, 2017, which is pending before the
4
OHIO FIRST DISTRICT COURT OF APPEALS
Court. The Court’s observation that [A.S.] had previously been
dismissed from the action via entry on November 3, 2017 is vacated.
Therefore, the Court enters this supplemental Entry of Correction.
[A.S.] is dismissed as subject to this litigation due to his death.
The trial court issued a second entry dated April 26, 2019. This entry stated
that it was a “correction nunc pro tunc: entry is from 4/25/19.” It further
stated that the entry reflected a “correction of record to reflect [that] deletion
of deceased child, [A.S.] is approved.”
{¶7} HCJFS, A.S.’s siblings, the children’s guardian ad litem, and mother
and father of the children (“parents”) have appealed the trial court’s entries
dismissing A.S. from the action.
Our Prior Decision
{¶8} Before considering the merits of these appeals, we address our
previous opinion in S Children 2. As set forth above, we stated in a footnote in S
Children 2 that the trial court had dismissed A.S. from the action due to his death.
{¶9} In fact, A.S. had not been dismissed, and there was no dismissal of A.S.
for this court to review. All parties agree that the trial court’s statement in its
November 3, 2017 entry that A.S. had previously been dismissed due to his death was
erroneous, and that, prior to the November 3, 2017 decision being issued, the record
contained no entry of dismissal with respect to A.S. The trial court recognized on
remand that A.S. had never been dismissed, and it dismissed him, solely because he
was deceased, for the first time in its April 25, 2019 entry. It is from that entry that
the parties appeal.
5
OHIO FIRST DISTRICT COURT OF APPEALS
Our Jurisdiction
A. R.C. 2505.02
{¶10} Under Article IV, Section 3(B)(2), Ohio Constitution, “[c]ourts of
appeals shall have such jurisdiction as may be provided by law to review and affirm,
modify, or reverse judgments or final orders of the courts of record inferior to the
court of appeals within the district.” In relevant part, R.C. 2505.02(B)(2) provides
that “[a]n order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is * * * [a]n order that affects a substantial
right made in a special proceeding or upon a summary application in an action after
judgment.”
{¶11} A permanent-custody action is a special proceeding. In re Adams, 115
Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, ¶ 43; S Children 1, 1st Dist.
Hamilton Nos. C-170624 and C-170653, 2018-Ohio-2961, at ¶ 10. A substantial right
is “a right that the United States Constitution, the Ohio Constitution, a statute, the
common law, or a rule of procedure entitles a person to enforce or protect.” R.C.
2505.02(A)(1). Where a substantial right exists, that right is affected “for purposes
of R.C. 2505.02(B)(2) only if ‘in the absence of immediate review of the order [the
appellant] will be denied effective relief in the future.’ ” Thomasson v. Thomasson,
153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.2d 1239, ¶ 10, quoting Bell v. Mt. Sinai
Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993).
{¶12} The trial court’s entries are final orders from which HCJFS, the
children’s guardian ad litem, C.S.2 and K.S., and C.S.1, M.S., and N.S. may appeal.
HCJFS has a substantial right to seek adjudications of abused, neglected, and
dependent children, and that right was affected when the trial court dismissed A.S.
6
OHIO FIRST DISTRICT COURT OF APPEALS
from the action. S Children 2, 2018-Ohio-5010, 126 N.E.3d 239, at ¶ 24. The
dismissal of A.S. also affected the guardian ad litem’s substantial right to ensure that
the best interests of the children are enforced and protected during the permanent-
custody proceedings. S Children 1 at ¶ 10. As to C.S.2, K.S., C.S.1, M.S., and N.S.,
they “have a statutory right set forth in R.C. 2151.01(A) that they are entitled to
enforce regarding who will raise them.” Id. Because the adjudication of A.S. may
impact both the adjudication of his siblings as well as a decision regarding who will
raise them, their statutory right was affected by the trial court’s dismissal of A.S.
from the action.
{¶13} We reach a different conclusion with respect to parents. Parents
indisputably have a substantial right in the custody of their child. Adams, 115 Ohio
St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, at ¶ 43. But that right was not affected
by the trial court’s entries because parents were not aggrieved by the trial court’s
dismissal of A.S. from the litigation. Parents are essentially challenging the date of
A.S.’s dismissal. They will not be denied effective relief in the future absent
immediate review. We accordingly find that the trial court’s entries are not final
orders from which parents can appeal, and we dismiss the parents’ appeals
numbered C-190332 and C-190333.
B. App.R. 4(B)
{¶14} A.S.’s siblings have not been dismissed from the action, and the trial
court’s entries dismissing A.S. did not contain Civ.R. 54(B) certification. But despite
the lack of Civ.R. 54(B) certification, because the trial court’s entries affect a
substantial right made in a special proceeding, App.R. 4(B)(5) permits the appeal
from the trial court’s partial judgment. S Children 2 at ¶ 35 (App.R. 4(B)(5) permits
7
OHIO FIRST DISTRICT COURT OF APPEALS
HCFJS to file an appeal within 30 days of the partial judgment or to await the end of
the case).
The Dismissal of A.S.
{¶15} In the appeals numbered C-190287, C-190299, C-190313, and C-
190320, HCJFS, the children’s guardian ad litem, C.S.2 and K.S., and C.S.1, M.S.,
and N.S. have raised assignments of error arguing that the trial court erred as a
matter of law and abused its discretion when it dismissed a deceased child from an
abuse, neglect, and dependency action solely because the child was deceased. We
address these assignments of error collectively.
{¶16} Parents argue that in order to challenge the dismissal of A.S., an
appeal needed to be taken from the November 3, 2017 entry which referred to a prior
dismissal of A.S. They argue that to correct this mistake, an appeal needed to be filed
at that time. All other parties argue that the order actually dismissing A.S.—which is
the order that is currently being appealed—is the order from which an appeal lies.
We agree.
{¶17} The jurisdiction of a juvenile court is set forth in R.C. 2151.23. As
relevant to this appeal, this statute provides that the juvenile court has exclusive
original jurisdiction “[c]oncerning any child who on or about the date specified in the
complaint * * * is alleged to * * * be a juvenile traffic offender or a delinquent, unruly,
abused, neglected, or dependent child.” R.C. 2151.23(A)(1). R.C. 2151.031(C)
provides that an abused child is any child who “[e]xhibits evidence of any physical or
mental injury or death, inflicted other than by accidental means, or an injury or
death which is at variance with the history given of it.” The plain language of the
revised code thus authorizes the juvenile court to adjudicate as an abused child a
8
OHIO FIRST DISTRICT COURT OF APPEALS
child who is deceased at the time the complaint is filed. See In re A.E., 6th Dist.
Lucas No. L-15-1146, 2016-Ohio-438, ¶ 41 (holding that “the trial court retains
jurisdiction over a deceased child for the purpose of adjudicating him or her as an
abused child”); In re Darling, 9th Dist. Wayne No. 03CA0023, 2003-Ohio-7184, ¶
25.
{¶18} We accordingly hold that a trial court may adjudicate a child who is
deceased at the time that the complaint is filed an abused child. In this case, the
complaint alleged that A.S. was the victim of a homicide, and that he was an abused
child because his death was caused other than by accidental means. Pursuant to R.C.
2151.23(A)(1), the trial court had jurisdiction to adjudicate A.S. an abused child, and
it erred by dismissing him from the action solely because of his death.
{¶19} The assignments of error raised by HCJFS, the children’s guardian ad
litem, C.S.2 and K.S, and C.S.1, M.S., and N.S., are sustained.
Conclusion
{¶20} Parents’ appeals are dismissed because the trial court’s entries were
not final orders from which they could appeal. We reverse the trial court’s dismissal
of A.S. from the action, and remand the case for further proceedings consistent with
the law and this opinion.
Judgment accordingly.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
9
In re S. Children
Combined Opinion